T. Kinavey v. West Jefferson Hills SD and Board of Directors of West Jefferson Hills SD

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Terry Kinavey, :
: No. 1081 C.D. 2015
Appellant : Argued: April 11, 2016
:
v. :
:
West Jefferson Hills School District :
and Board of Directors of :
West Jefferson Hills School District :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: June 15, 2016
Terry Kinavey (Kinavey) appeals from an order of the Court of
Common Pleas of Allegheny County (trial court) that denied her statutory appeal
from a determination of the Board of Directors (Board) of West Jefferson School
District (District) to remove her from the position of superintendent. The trial
court determined there was no impermissible commingling conduct between
prosecutorial and adjudicatory functions and that substantial evidence supported
the Board’s determination that Kinavey failed to comport herself consistent with
the requirements of the position of superintendent. Kinavey contends the trial
court erred by: concluding that there was no impermissible commingling; not
making findings of fact in support of this conclusion; and, upholding the Board’s
dismissal of her. Upon review, we affirm.
I. Background
Kinavey held the position of superintendent of the District for a five-
year term, which she began in July 2008. On November 17, 2009, the Board
suspended Kinavey without pay. By letter dated November 20, 2009, the District’s
Solicitor, Ira Weiss (Solicitor), sent Kinavey a formal statement of charges and
notice of hearing pursuant to Section 1080 of the Public School Code of 1949
(School Code).1 The statement of charges contained 15 enumerated charges for
conduct the Board deemed “incompetence, neglect of duty, intemperance, and
immorality” in violation the School Code. Reproduced Record (R.R.) at 14a. The
Board cited a lack of candor and dishonesty to the Board, as well as a pattern of
plagiarism in carrying out her duties as superintendent.
The Board hired Michael Palumbo to serve as both special counsel to
the Board and hearing officer (Hearing Officer) for the hearing. Solicitor’s office
prosecuted the charges. Because Solicitor was a witness in the case, his colleague,
Al Lubelski, acted as lead prosecutor. Midway through the hearing, the Board
replaced Lubelski with an outside law firm. Certified Record (C.R.), Vol. IV, at
991.
Hearing Officer held 15 public hearings to determine whether
Kinavey should be dismissed from employment. The District presented evidence
1
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §10-1080. This section provides:
District superintendents and assistant district superintendents may
be removed from office and have their contracts terminated, after
hearing, by a majority vote of the board of school directors of the
district, for neglect of duty, incompetency, intemperance, or
immorality, of which hearing notice of at least one week has been
sent by mail to the accused, as well as to each member of the board
of school directors.
24 P.S. §10-1080.
2
and witness testimony in support of the charges. In turn, Kinavey presented
evidence and witness testimony on her behalf, including her own testimony. At the
close of the hearings, both parties presented proposed findings of fact and
conclusions of law. Based on the evidence presented, Hearing Officer issued a
decision, containing 198 findings of fact and 37 conclusions of law, recommending
Kinavey’s dismissal.
The Board met in executive sessions in August and September 2010
to deliberate and adjudicate the charges. Present at the sessions were Hearing
Officer and most members of the Board,2 except for David Graham and Shauna
D’Alessandro who served as witnesses and recused themselves from participation
in the deliberations and adjudication. Board’s Adjudication, 9/29/10, Findings of
Fact (F.F.) Nos. 4, 15; see C.R., Vol. I, at 7; C.R., Vol. IX, at 2263-64. The Board
then issued an adjudication in which it adopted the findings and conclusions of
Hearing Officer, which are summarized as follows.
In the summer of 2009, the District posted a vacancy for an English
Teacher/Reading Specialist, a dual certification position, for the 2009-2010 school
year at Thomas Jefferson High School. Kinavey was involved in the interview and
hiring process. Six candidates applied for the position. Following first-level
interviews, two candidates did not advance, two candidates withdrew, and two
candidates advanced to the second level. Denise Breisinger (Breisinger), who was
a resident of and a substitute teacher for the District, was one of the two candidates
that advanced. F.F. Nos. 25, 27, 31, 33, 35, 36.
2
Throughout the original hearing, the Board members were Deborah Pozycki, Marianne
Neel, Anthony Angotti, Alan Caponi, Anna Louise Lilley, Carolyn Bourgeois, Anthony Rash,
Shauna D’Alessandro, and David Graham. F.F. No. 3; see C.R., Vol. IX, at 2257-2261
(Verifications); C.R., Vol. II, at 703.
3
A five-person interview team, which included Kinavey, Hamsini
Rajgopal (Rajgopal), human relations director, Timothy Hasselhoff, principal at
the high school, Paul Ware, associate principal at the high school, and Suzan
Petersen, assistant to the superintendent, conducted second-level interviews of the
two remaining candidates. Breisinger garnered no negative comments. Standard
practice is for the interview team to reach a consensus as to the candidate to
recommend to the Board by presenting a personnel sheet, commonly referred to as
a “blue” sheet. However, the team could not reach a consensus on the candidate
for the position. Kinavey did not tell the interview team she could not recommend
Breisinger. F.F. Nos. 23, 24, 32, 39, 45, 46.
Rajgopal sought advice from Solicitor, who advised her to select the
best candidate. However, Rajgopal understood Solicitor’s advice to be that if the
team offered the job to “Candidate A” and she turned it down, the job should go to
“Candidate B,” which was Breisinger, and she relayed this information to the team.
The team offered the position to Candidate A, but she declined. F.F. Nos. 47-50.
At a meeting held July 21, 2009, Kinavey stated Breisinger would be
the candidate recommended to the Board based on Solicitor’s advice that the
District “had to hire” Breisinger. F.F. Nos. 54. The team reached a consensus that
Breisinger would be the candidate recommended for the position to the Board. At
the July 24th meeting, Kinavey reiterated that Breisinger would be the
recommended candidate. Kinavey did not indicate to the interview team that she
was withdrawing the recommendation. While Kinavey was on vacation, team
members acted on the assumption that Breisinger was going to be hired for the
position, and they prepared a blue sheet containing Breisinger’s name for the
4
Board’s approval and assigned Breisinger a teacher mentor. F.F. Nos. 24, 56, 57,
61-66.
However, when Kinavey returned from vacation and discovered
Breisinger’s name on the blue sheet, she met with Solicitor and expressed her view
that she did not recommend Breisinger. Kinavey informed Solicitor that, when
Breisinger previously substituted for the District, she requested to have her hours
of work altered. Kinavey also relayed that, prior to serving as superintendent, she
served on a second-level team when Breisinger unsuccessfully applied for a
teaching position; Breisinger and her husband complained to the then-
superintendent that Kinavey did not hire Breisinger because of personal animus.
Solicitor advised Kinavey it was her prerogative as superintendent not to
recommend a candidate, but he warned of a “real risk” of litigation if the District
did not hire Breisinger because she had the requisite certifications and was
qualified for the position. On August 13, 2009, Kinavey directed the removal of
Breisinger’s name as well as the English Teacher/Reading Specialist position from
the blue sheet. After the meeting, the position was reposted as an English-only
position. F.F. Nos. 72, 75, 78-80, 84, 85, 88, 89, 129.
At the Board meeting on August 18, 2009, the Board reviewed the
blue sheets, which did not contain Breisinger’s name or the position of English
Teacher/Reading Specialist. Kinavey did not inform the Board that Breisinger’s
name appeared on and was removed from the blue sheet, that she removed the
English Teacher/Reading Specialist position from the blue sheet, or that Solicitor
warned her of the risk of litigation if the District did not hire Breisinger. F.F. Nos.
92-94.
5
A week later, at a public meeting of the Board, supporters of
Breisinger questioned the Board’s decision not to hire Breisinger and spoke in
favor of her candidacy. Although Kinavey attended the meeting, she did not offer
any explanation regarding the removal of Breisinger’s name from the blue sheet.
She also offered no explanation as to why the position was changed from English
Teacher/Reading Specialist, a dual certification position, to English Teacher, a
single certification position. She did not inform the Board that the interview team
had formed a consensus to recommend Breisinger for the position. F.F. Nos. 97-
102.
At an executive session, the Board3 asked Kinavey whether
Breisinger’s name appeared on a blue sheet. Kinavey initially responded it had
not. She then explained Breisinger’s name was placed on a blue sheet by Rajgopal
by default because she was the last candidate standing when Candidate A
withdrew. Kinavey led the Board to believe Candidate A withdrew from
consideration while she was on vacation. However, Kinavey knew Candidate A
declined the position prior to leaving for vacation. Kinavey did not tell the Board
that she advised the interview team that Breisinger would be the recommended
candidate. F.F. No. 112, 113, 116, 117, 119, 126.
The Board directed its Solicitor to conduct an investigation of
Kinavey and the events surrounding the interview and hiring process. Solicitor
advised the Board that his initial investigation revealed no wrongdoing and that
3
All members of the Board, except for Bourgeois and Rash who were not Board
members in 2009, participated in the executive sessions held in August and September 2009.
See C.R., Vol. I, at 278; see also R.R. at 184a.
6
Kinavey acted within the scope of her authority when she did not recommend
Breisinger for the position. F.F. Nos. 121, 122.
After Solicitor made his initial report, the Board directed Solicitor to
conduct a second investigation in response to new information. Significantly,
Solicitor’s second investigation uncovered additional facts regarding the
circumstances surrounding the interview team’s consensus and that not all of the
team shared Kinavey’s negative assessment of Breisinger’s capabilities. Solicitor
also uncovered alleged acts of plagiarism unrelated to Breisinger’s hiring.
Solicitor determined cause existed to remove her. F.F. Nos. 123-125, 167, 168.
Ultimately, the Board found Kinavey was not truthful or forthright in
her representations to the Board about the hiring process. The Board rejected
Kinavey’s sworn testimony as “untruthful” because it was contradicted by District
administrators. F.F. No. 157; see Board’s Adjudication, Conclusion of Law No.
35. Specifically, Kinavey did not inform the Board of: the consensus to
recommend Breisinger for hire; the removal of Breisinger’s name from the blue
sheet prior to the Board meeting; the known risk of litigation if Breisinger was not
hired; or that she removed the English Teacher/Reading Specialist position from
the blue sheet and posted it as English-only position. F.F. Nos. 92-94, 100-105.
Moreover, Kinavey led the Board to believe that Candidate A
withdrew from consideration while she was on vacation when she knew prior to
leaving for vacation that Candidate A declined the position, leaving Breisinger as
the last candidate. F.F. No. 116, 117. Kinavey also misrepresented a lesson plan
that Breisinger presented during the second-level interview and led the Board to
believe the entire interview team held a negative assessment of Breisinger, which
was not so. F.F. No. 137.
7
The Board found Kinavey was motivated by personal bias against
Breisinger based on prior interactions. Kinavey used the pretenses such as an
undersized interview pool and the need to repost the position as an English position
as a ruse to avoid recommending Breisinger for hire. Although Breisinger was
qualified for the position, Kinavey allowed her personal bias against Breisinger to
adversely impact her decision-making and her communications with the Board
about the hiring process. F.F. Nos. 129, 130, 133.
In addition, the Board found four specific instances of plagiarism.
Specifically, in the summer of 2009, Kinavey distributed written materials to the
District without offering attribution to the original source of the material. Three of
the plagiarized items were submitted by Kinavey to her secretary as handwritten
items for typing. Kinavey copied these letters in her own handwriting to make it
appear that she wrote the text herself. The plagiarized materials offended the
morals of the District and set a bad example for the youth served by the District.
F.F. Nos. 162-165, 181, 182.
In short, the Board found that many of the charges against Kinavey
were proven. Namely, Kinavey displayed a lack of candor and dishonesty to the
Board, and she engaged in plagiarism. The Board determined Kinavey’s conduct
constituted neglect of duty and immorality under Section 1080 of the School Code,
and it voted to dismiss her as superintendent of the District.
From this decision, Kinavey filed a statutory appeal with the trial
court. Kinavey argued, among other things, that the record was incomplete
because she was denied access to certain evidence. The trial court agreed and
remanded the matter to the Board to make a full and complete record. Specifically,
the trial court ordered: the production of extensive electronically-stored
8
information; the recusal of two Board members (D’Alessandro and Graham) from
the remand hearing; and authorization to recall D’Alessandro as a witness. The
trial court further directed Hearing Officer to exercise his discretion in determining
whether Hearing Officer or District’s counsel should conduct voir dire of the
Board members.
On remand, Hearing Officer conducted six days of public hearings,
took additional testimony, admitted voluminous electronic evidence, and
conducted voir dire of the Board members. Based on the additional evidence
adduced, the Board4 again determined Kinavey was unfit to serve as superintendent
by resolution dated August 20, 2013. R.R. at 105a-112a.
Kinavey again appealed to the trial court. She claimed the Board
violated her due process rights because Solicitor and members of the Board
engaged in impermissible commingling conduct between the prosecutorial and
adjudicatory functions. She also challenged the sufficiency of the evidence
supporting her termination from employment.
The trial court bifurcated the appeal, at Kinavey’s request, to first
consider the issue of whether Kinavey’s due process rights were violated by the
alleged impermissible commingling. The trial court heard oral argument on the
issue and afforded the parties the opportunity to supplement the record with
additional evidence. By order dated October 17, 2014, the trial court found there
was no impermissible commingling conduct on the part of the Board or Solicitor.
Thereafter, the trial court proceeded on the underlying merits of the
appeal. The trial court found that the Board created a full and complete record and
4
Rash did not participate in the deliberations or adjudication of the remand hearing
because he was no longer a member of the Board. See R.R. at 184a, 554a.
9
that the Board’s necessary findings of fact were supported by substantial evidence.
By final order dated June 5, 2015, the trial court affirmed the determination of the
Board to remove Kinavey.
Kinavey filed an appeal to this Court challenging both orders.5 At the
direction of the trial court, Kinavey filed a concise statement of errors complained
of on appeal pursuant to Pa. R.A.P. 1925(b). The trial court filed an opinion in
support of its orders.
II. Issues
On appeal, Kinavey presents three issues. First, she contends the trial
court erred by not making findings of fact in relation to the impermissible
commingling issue, even though it took additional evidence and conducted a de
novo hearing on the issue. Second, she claims the trial court erred in concluding
that neither the Solicitor nor Board members engaged in impermissible
commingling conduct such that Kinavey’s constitutional rights were violated.
Finally, she contends substantial evidence does not support the Board’s dismissal.
III. Discussion
A. Findings of Fact
First, Kinavey contends the trial court erred by failing to make any
findings of fact to support its October 17, 2014, order disposing of the
commingling issue. The trial court accepted supplemental evidence and conducted
5
When a trial court does not take additional evidence, our review of a local agency’s
adjudication is limited to determining whether constitutional rights were violated, whether errors
of law were committed or whether the decision is not supported by substantial evidence.
2 Pa. C.S. §754(b); Spencer v. City of Reading Charter Board, 97 A.3d 834, 839 (Pa. Cmwlth.
2014). Where the trial court considers additional evidence or conducts de novo review on a
particular issue, our review is whether the trial court abused its discretion, committed an error of
law or violated constitutional rights. Mento v. Board of School Directors of Montour School
District, 35 A.3d 66, 68 n.3 (Pa. Cmwlth. 2011).
10
a de novo review on the commingling issue. Consequently, she claims the trial
court was required to make detailed findings of fact on the commingling issue as if
it were an agency. Kinavey asserts the trial court merely entered an order
declaring there was no impermissible commingling without making any findings in
support. The trial court compounded this error when it did not include sufficient
findings in its Rule 1925(a) opinion.
Section 754 of Local Agency Law provides:
In the event a full and complete record of the proceedings
before the local agency was not made, the court may hear
the appeal de novo, or may remand the proceedings to the
agency for the purpose of making a full and complete
record or for further disposition in accordance with the
order of the court.
2 Pa. C.S. §754(a). “All adjudications of a local agency shall be in writing, shall
contain findings and the reasons for the adjudication, and shall be served upon all
parties or their counsel personally, or by mail.” Section 555 of Local Agency Law,
2 Pa. C.S. §555.
Generally, a local agency must render an opinion delineating
sufficient findings to support its conclusions in order to provide for meaningful
judicial review. Borough of Youngsville v. Zoning Hearing Board of Youngsville,
450 A.2d 1086, 1089 (Pa. Cmwlth. 1982). However, “specific findings of fact are
not required” if the opinion provides “an adequate explanation” for the resolution
of the issues involved. Id. Moreover, “[a] court, acting de novo, has full fact
finding functions and it is implicit in Section 754(a) that a court acting de novo is
not restricted in its fact finding function.” Pittsburgh Board of Public Education v.
MJN by NJN, 524 A.2d 1385, 1388 (Pa. Cmwlth. 1987), appeal denied, 541 A.2d
1392 (Pa. 1988).
11
Here, upon determining the Board did not make a full and complete
record on the issue of impermissible commingling, the trial court conducted de
novo review pursuant to Section 754 of Local Agency Law. In furtherance of that
review, the trial court accepted additional evidence and acted as the factfinder,
rather than as an appellate court. See Leasure v. Borough of Trafford, 531 A.2d
559, 560 (Pa. Cmwlth. 1987). The trial court issued an opinion with findings of
fact.
Specifically, the trial court found there was no impermissible
commingling conduct on the part of the Board or Solicitor. With respect to the
Board, it found:
[Kinavey] alleges that members of the school board
conducted their own investigation of [Kinavey] and the
hiring process for the English/Reading position by
discussing the situation with administrators. [Kinavey]
also alleges that the school board commingled their [sic]
prosecutory and adjudicatory functions by providing
information to [Solicitor] during his investigation of
[Kinavey]. I do not find that these actions rise to the
level of impermissible commingling and I committed no
error in finding so.
Trial Court Opinion, 8/17/15, at 4; R.R. at 1265a.
With respect to Solicitor, it found: the Board was represented by and
advised by Hearing Officer, not by Solicitor; there was no allegation that Solicitor
was involved in the adjudication in any way; the Board retained separate counsel to
represent it during the deliberations and in the decision-making process; and,
Solicitor did not preside at the hearing or make evidentiary rulings, nor did he
participate in the deliberations to terminate Kinavey. Trial Court Opinion, at 5;
R.R. at 1266a. The trial court further found Kinavey’s due process rights were not
violated. Id.12
Although the trial court set forth its findings in narrative form as
opposed to enumerated form, we are aware of no authority specifying the stylist
form. Upon review, the trial court’s Rule 1925(b) opinion comports with the
requirements under Local Agency Law and provides an adequate explanation for
the resolution of the commingling issue for appellate review.
B. Commingling
Next, Kinavey contends her due process rights were violated because
the Board and Solicitor engaged in impermissible commingling of investigatory,
prosecutorial, and adjudicatory functions. According to Kinavey, the law requires
a rigid separation between those who investigate and prosecute and those who act
as the tribunal in an employee disciplinary case. Board members and Solicitor
ignored the required separation of roles throughout the second investigation and
during the original hearing when the record and findings were made.
More particularly, Kinavey claims Board members were
impermissibly involved in the investigation and prosecution. With regard to the
investigation, she claims Board members not only provided information used by
Solicitor in his investigation, but they conducted their own investigations. Board
members directed and supervised Solicitor during the investigation. They also
requested and received details of the investigation as well as legal advice regarding
the potential discharge of Kinavey from Solicitor during the investigation.
Kinavey also claims Board members were committed to the position that she
should be discharged throughout the investigation.
In addition, Kinavey contends that Board members: strategized with
Solicitor to limit witnesses to be called at the hearing; engaged in ex parte
communications with District administrators, who were called as prosecution
13
witnesses; and used their own recollection of events to evaluate the testimony.
According to Kinavey, Board members communicated with and received advice
from Solicitor, not Hearing Officer, after Hearing Officer was hired as counsel for
the Board. Although the Board hired another attorney to prosecute, the Board
allowed Solicitor to serve as a co-prosecutor throughout the original hearing and to
testify in that hearing as one of the main prosecutorial witnesses regarding his
communications with Kinavey.
Due process is violated by impermissible commingling at the hearing
or during the decision-making process. Harmon v. Mifflin County School District,
651 A.2d 681, 684 (Pa. Cmwlth. 1994). “However, beyond the limits of the
hearing or the decision-making process, the solicitor may act on the school board's
behalf.” Id. The law is clear that “when a solicitor either prosecutes a case or
conducts the hearing as an advisor to the school board, but not both, there is no
impermissible commingling.” Behm v. Wilmington Area School District, 996 A.2d
60, 66 (Pa. Cmwlth. 2010), appeal denied, 23 A.3d 1057 (Pa. 2011); accord
Harmon, 651 A.2d at 684; Brown v. School District of Cheltenham Township, 417
A.2d 1337, 1340 (Pa. Cmwlth. 1980).
In Behm, an attorney represented the administration in the
prosecutorial function, but he did not serve as the hearing officer, rule on
objections to testimony or admissibility of evidence. Rather, the district solicitor
conducted the hearing on behalf of the school board and made evidentiary rulings.
The school board rendered the ultimate determination. As there was a clear
distinction between prosecutorial and adjudicatory roles, we concluded there was
no impermissible commingling. 996 A.2d at 66.
14
Likewise, in Harmon, the solicitor fulfilled the prosecutorial function
by presenting the administration's case against a suspended custodian, while
counsel from the Pennsylvania School Board's Association advised the school
board in its adjudication. There was no allegation that the solicitor was involved in
the adjudication in any way. The mere existence of a continuing relationship
between the solicitor and the school board did not create the appearance of
impropriety at the hearing or during the school board's termination deliberations.
We explained the solicitor did not act on behalf of the school board at the hearing
by “either advising them or ruling on objections or evidentiary questions and [did]
not advise them during those deliberations.”6 651 A.2d at 685. Thus, we found no
constitutional violation by the solicitor's representation of the school district
administration at the hearing on custodian’s termination. Id.Similarly, in Brown, a principal who was demoted, contended that it
was improper for the solicitor of the school board to act as prosecutor and for a
school board member to act as a legal advisor to the school board during the
demotion hearing. We held that there was no impermissible commingling of
functions where the solicitor only presented evidence and questioned witnesses on
behalf of the school district and did not advise the board during the hearings or
deliberation. 417 A.2d at 1340.
However, in Department of Education v. Oxford Area School District,
356 A.2d 857 (Pa. Cmwlth. 1976), we found impermissible commingling occurred.
6
In Harmon, this Court specifically rejected application of Lyness v. Commonwealth,
State Board of Medicine, 605 A.2d 1204 (Pa. 1992), because “the ‘interests’ involved in the
employment relationships are totally different than an independent agency actions regulating
individuals.” 651 A.2d at 686. Thus, the same type of rigid due process requirements do not
apply to school boards as they do other independent administrative agencies. Id.15
There, a school superintendent investigated a teacher's involvement in a shoplifting
incident. Based upon the superintendent's recommendation, the school board
decided to charge the teacher with incompetency and immorality. Id. at 859. At
the dismissal hearing, the superintendent testified as an adverse witness against the
teacher and then participated in the board's deliberations, which resulted in
dismissal of the teacher. We concluded that the superintendent's actions did not
reasonably safeguard the teacher's statutory right to an impartial and unbiased
decision. Id. at 861. However, we specifically emphasized “that it is the
[s]uperintendent's role as an adverse witness that is crucial to this case; the fact that
he initially investigated the shoplifting incident and recommended a hearing is not,
in our view, sufficient to indicate any bias that would render his participation in the
adjudicatory phase objectionable.” Id.
In essence, the following principles can be gleaned from this case law:
1. An individual or [b]oard may conduct a general
probable cause investigation and still adjudicate the case.
2. An individual may as a pro forma matter sign a
suspension or removal letter and still adjudicate the case.
3. An individual may prepare charges and still adjudicate
the case.
4. An individual may not prefer charges or actively
participate in the investigation and still adjudicate the
case.
Scalzi v. City of Altoona, 533 A.2d 1150, 1153 (Pa. Cmwlth. 1987), appeal denied,
551 A.2d 218 (Pa. 1988); accord Behm, 996 A.2d at 67.
Applying these principles here, the trial court did not err in
determining no impermissible commingling occurred. As the employer of
Kinavey, the Board followed its statutory duties by conducting a probable cause
16
investigation regarding the charges against Kinavey, holding a hearing on those
charges, and then terminating Kinavey based on the evidence.
The evidence Solicitor gathered in his second investigation is that
which would be expected to be collected in a general probable cause investigation.
To the extent Board members participated in the investigation, such is not
prohibited by the Board in making a probable cause determination. See Scalzi, 533
A.2d at 1153; Lower Providence Township v. Nagle, 469 A.2d 338, 343
(Pa. Cmwlth. 1984); Lomas v. Board of School Directors of Northwestern Lehigh
School District, 444 A.2d 1319, 1324 (Pa. Cmwlth. 1982). To make an informed
decision, each Board member was required to have sufficient knowledge of the
facts surrounding each of the charges. Indeed, as this Court explained in Lomas:
The making of the charges presupposes that the members
of the board had some knowledge of the facts upon
which the charges were based. Unless they had an
opinion that the charges, if sustained, would warrant
dismissal, they should never have been made. That a
member of the board had an opinion at the time the
charges were preferred against appellant would not
disqualify him from participating in a hearing on those
charges, or invalidate the proceedings. We do not think
that anything more was required of the members of the
board than that they could hear and determine the charges
against appellant on the evidence given before them,
uninfluenced by other previous impressions.
444 A.2d at 1325 (quoting Flannery Appeal, 178 A.2d 751, 754 (Pa. 1962)).
Contrary to Kinavey’s assertions, there is no evidence to support that
the Board members who adjudicated the case were committed to the position that
Kinavey was guilty as charged throughout the investigation. The Hearing Officer
conducted extensive voir dire of the Board members. See R.R. at 1238a-1246.
17
Through this process, the Board members involved in the deliberative process and
adjudication avowed they were uninfluenced by the previous impressions, and that
they were not pre-committed to the position of Kinavey’s wrongdoing. To the
extent some Board members witnessed some of the factual events, they testified
they did not harbor any bias against Kinavey that would preclude them from fairly
deciding the case. Id. Specifically, the Board members testified they did not
prejudge the case, kept an open mind during the hearing, and limited their
deliberations to the evidence presented at the hearings. Id. Although Kinavey
attacks the testimony elicited at voir dire as “self-serving” and “unbelievable,”
Appellant’s Brief at 43-44, determinations as to weight of evidence and credibility
are for the factfinder, not this Court. See East Coast Paving & Sealcoating, Inc. v.
North Allegheny School District, 111 A.3d 220, 234 (Pa. Cmwlth. 2015).
With regard to the alleged commingling conduct by Solicitor, the
Board hired new counsel to serve as lead prosecutor and hearing examiner.
Although Solicitor conducted the probable cause investigation and served as co-
prosecutor throughout the original hearing, he did not participate in the
adjudicatory process. See Brown. While some Board members communicated
with and received advice from Solicitor, such communication was not
impermissible. A solicitor may continue to advise the Board and even prosecute
the case as long as he is not presenting evidence in the case while at the same time
ruling on the admissibility of that evidence. See Human Relations Commission v.
Feeser, 364 A.2d 1324, 1327 (Pa. 1976) (finding no impermissible commingling
where there was no evidence to support contention that counsel advised the hearing
panel at the hearing and in the decisional process); see also Brown. Although
Solicitor presented evidence, including his own testimony, he did not rule on the
18
admissibility of evidence, act as the hearing officer, or otherwise participate in the
adjudication of the case.
Upon further review, we note that many of the Kinavey’s allegations
of impermissible commingling involve the conduct of one Board member,
D’Alessandro. Kinavey contends D’Alessandro commingled prosecutorial and
adjudicatory functions when she conducted her own investigation, which led to the
plagiarism charges; strategized with Solicitor regarding prosecution witnesses to be
called and questions to be asked at the hearing; and engaged in ex parte
communications with counsel and third parties about the case. Although we are
troubled by D’Alessandro’s actions, she did not participate in the deliberations or
adjudication. D’Alessandro recused herself during the original hearing. C.R., Vol.
IX, at 2263-64. The trial court directed her continued recusal in the remand
proceeding. Consequently, she was not involved in the deliberative or adjudicative
process in the initial hearing or the remand hearing.
For these reasons, we conclude the trial court did not err in
determining there was no impermissible commingling of the prosecutorial and
adjudicatory functions by Solicitor or Board.
C. Substantial Evidence
Lastly, Kinavey contends the Board’s adjudication is not supported by
substantial evidence and must be overturned. She claims the Board’s findings
regarding the interview process were arbitrary and capricious, and the result of a
deliberate disregard of competent testimony and evidence. Specifically, she takes
issue with the Board’s findings nos. 123-125 regarding “new information”
discovered after Solicitor made his initial report to the Board. The Board found
Solicitor learned there was a consensus among the interview team that Breisinger
19
would be the candidate recommended for the position and that not all of the team
shared Kinavey’s negative assessment of Breisinger’s capabilities; the Board was
not advised that the interview team reached a consensus that Breisinger would be
the recommended candidate for the English teacher position; and, this new
information changed the complexion of how the hiring situation was handled.
According to Kinavey, this was not “new information.” Solicitor
interviewed all members of the interview team in his initial investigation. Based
on their statements to him, Solicitor concluded all members of the team agreed
Breisinger performed poorly during her interview. The consensus that Breisinger
would be recommended to the Board was based solely on the fact that she was the
sole remaining candidate for the position and they operated under the belief that
she had to be hired. Kinavey claims the Board knew of this “consensus” when
Solicitor made his initial report. See R.R. at 245a-247a. This knowledge
contradicts and renders unreliable any testimony to the contrary.
In addition, Kinavey challenges numerous other findings on the
ground that the Board capriciously disregarded evidence, namely her own
unrefuted testimony. She also maintains the Board ignored the testimony of the
District’s witness, Carl DeJulio, Ed. D., who testified Kinavey did not violate
District policy.
With regard to the plagiarism charges, she claims the conduct proved
was not plagiarism as a matter of law because she did not deliberately and
knowingly present another person’s original ideas or creative expressions as her
own. Even if she made a mistake by not referencing the sources of her welcome
letters, the Board presented no policy that plagiarism was prohibited by the
District. Therefore, this cannot serve as a basis for discharge.
20
It is well settled that findings of fact must be supported by substantial
evidence. Bonatesta v. Northern Cambria School District, 48 A.3d 552, 558
(Pa. Cmwlth. 2012). Substantial evidence is such relevant evidence that a
reasonable mind might accept as adequate to support a conclusion. Id. When
performing a substantial evidence analysis, the court must view the evidence in the
light most favorable to the party that prevailed before the fact finder. Id. It is for
the school board, not the court, to assess the credibility of the witnesses. Id. This
Court may not reweigh the evidence or make its own credibility determinations.
Spencer v. City of Reading Charter Board, 97 A.3d 834, 842 (Pa. Cmwlth. 2014).
However, a court will “overturn a credibility determination if it is arbitrary and
capricious or so fundamentally dependent on a misapprehension of material facts,
or so otherwise flawed, as to render it irrational.” Bonatesta, 48 A.3d at 558(quoting Agostino v. Township of Collier, 968 A.2d 258, 263-264 (Pa. Cmwlth.
2009)). “A capricious disregard of evidence exists only when there is a willful and
deliberate disregard of competent testimony and relevant evidence which one of
ordinary intelligence could not possibly have avoided in reaching a result.” Id. at
559 (quoting Agostino, 968 A.2d at 264).
Here, Kinavey challenges the Board’s findings Nos. 123-125 as
unsupported by substantial evidence. These findings provide:
123. After [Solicitor] made his report to the Board on
September 15, the Board was later advised that there had
been a consensus among the interview team at the end of
July that Breisinger would be the candidate for the
position and that this explained why others on the
administrative team (i.e., Ms. Rajgopal, Mr. Haselhoff)
operated as though Breisinger was going to be hired, and
that not all of the administrative team shared Kinavey's
negative assessment of Breisinger capabilities. N.T. pp.
878 -879.
21
124. [Solicitor] was first informed by Rajgopal of the
circumstances surrounding the interview team's
consensus regarding the hiring of Breisinger the day after
he delivered his report to the Board. N.T. p. 682. This
new information ‘materially changed the complexion’ of
how the Breisinger hiring situation was handled, and was
brought to the Board's attention. N.T. p. 682.
125. The Board was not advised that the interview team
had come to a consensus that Breisinger would be the
candidate recommended for the English/Reading
Specialist position until September 16, 2009. N.T. p.
979.
R.R. at 36a-37a.
Our review of Solicitor’s first report to the Board confirms Kinavey’s
assertion that Solicitor apprised the Board of the “consensus” to hire Breisinger.
R.R. at 245a-246a. Specifically, Solicitor reported to the Board: “The consensus,
which was not objected to, was that [Breisinger] was to be recommended to the
Board.” Id. at 246a (emphasis added). As a result, the Board’s finding that it was
not aware of a consensus until after the Solicitor’s report is not supported by
substantial evidence.
Notwithstanding, the circumstances surrounding the interview team's
consensus was new information. When the Solicitor first reported to the Board, the
nature of the consensus was that Breisinger was merely the candidate by default.
See C.R., Vol. II, at 642-643. Solicitor’s initial report reflected the team’s negative
assessment of Breisinger. Specifically, Solicitor reported “there was
dissatisfaction with the lesson [Breisinger] used as a demonstration.” R.R. at 245a.
He continued:
The opinion was shared that the lesson was below the
grade level for 12th grade, using the Three Little Pigs
story as a model with an Hispanic based comparison and
a Venn diagram which measure the area(s) of
22
commonality between the stories. The notes also reveal
that [Breisinger] knew little about [response to
intervention] as well as differentiated instruction which
the Committee deemed to be important. She also had no
suggestions for reading assessment models.
Id.Kinavey herself testified she believed the lesson plan was “not grade
appropriate, even for remediation, and the vocabalary [sic] words were not grade
appropriate, they were vocabalary [sic] words you would use for 3rd grade . . . .”
C.R., Vol. IV, at 1169. According to Kinavey, everyone agreed the lesson plan
was not grade appropriate. Id. at 1179.
Solicitor testified, “it appeared that there were these issues of this
lesson and that the recommendation and the non-hiring of ... Breisinger was
basically the result of that.” C.R., Vol. II, at 575. He thought Breisinger “had not
performed as she should have in the process” and that there were “issues with her
interview.” Id. at 642. The interview team was told it had to hire Breisinger. Id.
at 643.
However, after Solicitor presented his report, he received a call from
Rajgopal, who advised him regarding the circumstances surrounding the consensus
to recommend Breisinger. C.R., Vol. II, at 575. Solicitor learned there was a
consensus to hire Breisinger, not because the team had to hire her, but because she
was “generally confirmed.” Id. at 575, 643. When Solicitor conducted his second
investigation, he discovered not all team members shared Kinavey’s negative
assessment of Breisinger’s capabilities or agreed her lesson plan was not grade
appropriate or lacked rigor.
At the hearing, Haselhoff credibly testified Breisinger’s lesson plan
was satisfactory and the team did not express agreement that the plan was not
23
grade-appropriate. F.F. No. 137; C.R., Vol. II, at 500. Ware, who was an English
teacher himself as well as the Associate Principal responsible for oversight of the
high school’s English department, testified Breisinger’s lesson plan was grade-
appropriate. Ware further testified her plan was “loaded with rigor,” “very
thorough,” and included “rationale,” “objectives” and “standards.” F.F. No. 44;
C.R. Vol. II, at 487-488. Petersen referred to Breisinger as “very strong English
candidate[]” and did not recall any objection to her candidacy. C.R., Vol. I, at 198-
199. Substantial evidence supports the Board’s findings that the information
regarding the circumstances surrounding the consensus to recommend Breisinger
was new and undermined Kinavey’s position that Breisinger was not
recommended.
As for Kinavey’s assertions that the Board ignored or capriciously
disregarded her testimony, the Board considered her testimony. The Board
determined her testimony was directly contradicted by the sworn testimony of the
District’s administrators. See F.F. Nos. 131-156. Although portions of her
testimony were unrefuted, the Board specifically rejected her testimony as
“untruthful.” F.F. No. 157; Conclusion of Law No. 35. Contrary to Kinavey’s
assertions, the Board’s credibility determinations were not arbitrary or capricious.
See Bonatesta. Thus, we will not disturb them on appeal.
Kinavey also contends the Board willfully disregarded testimony from
the District’s expert witness, Dr. DeJulio. Dr. DeJulio testified that Kinavey did
not violate any District policy in the hiring process. C.R., Vol. III, at 902, 919,
981; C.R., Vol. IV, at 1096. He further testified that the District’s professional
employee hiring policy does not require the superintendent to inform the Board
about a candidate the superintendent is not recommending to be hired. C.R., Vol.
24
IV, at 1096. According to Kinavey, this testimony contradicts any evidence of any
wrongdoing.
However, the Board did not remove Kinavey for violating District
policy. Rather, it removed her from office for engaging in conduct that constituted
neglect of duty and immorality under Section 1080 of the Public School Code.
The Board cited Kinavey’s lack of candor and dishonesty to the Board as well as
personal bias as bases for its decision.
In that regard, Dr. DeJulio testified that Kinavey, as superintendent,
owed the Board a duty of candor and full disclosure. C.R., Vol. III, at 930. He
testified the charges against Kinavey, if proven, exhibited a breakdown in
communication and represented a pattern of behavior that he considered neglect of
duty. Id. at 902, 910, 927, 932-33. While recognizing it is a superintendent’s
prerogative not to recommend a candidate to the Board, Dr. DeJulio questioned
Kinavey’s action of circumventing the hiring process and unilaterally removing
Breisinger’s name from consideration without involving the team. C.R., Vol. III,
at 909, 928. Regarding the lesson plan, Dr. DeJulio testified the information
obtained “from one 15 minute presentation is extremely limited.” Id. at 934. He
was confused why anyone would put so much credence on a 15 minute lesson plan
as opposed to Breisinger’s seven-year history working as a substitute in the
District. Id. Contrary to Kinavey’s assertions, Dr. DeJulio’s testimony does not
support her position.
Finally, Kinavey’s argument that the verbatim copying of written
works, without attribution, and passing them off as her own did not constitute
plagiarism as a matter of law is unavailing. Plagiarism is generally defined as:
The act of appropriating the literary composition of
another, or parts or passages of his writings, or the ideas
or language of the same, and passing them off as the
25
product of one’s own mind. If the material is protected
by copyright, such act may constitute an offense of
copyright infringement.
BLACK’S LAW DICTIONARY 1150 (6th ed. 1990).
Kinavey does not deny she copied the materials in the letters without
proper attribution. To the extent Kinavey alternatively claims her use of the
material without attribution was an innocent mistake, the Board found her intention
was to mislead and deceive because she copied three of the letters in her own hand
and provided them to her secretary for typing. The Board found that she did this to
make it appear that she drafted the text herself.
Although the District did not have a formal policy prohibiting
plagiarism, plagiarism clearly constitutes academic dishonesty that is both immoral
and incompetent for a school superintendent to engage in. On this basis alone, the
Board was justified in removing Kinavey from employment.
Although the record may contain evidence that would support
findings other than those made, the proper inquiry is whether the evidence supports
the findings actually made. See Ductmate Industries, Inc. v. Unemployment
Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Upon
review, the Board’s necessary findings are supported by substantial evidence and
support the Board’s determination that Kinavey was not fit to serve as
superintendent of the District.
IV. Conclusion
In sum, the trial court did not err or abuse its discretion in affirming
the removal of Kinavey as superintendent of the District. The trial court’s opinion
consisted of general findings and disposed of all claims for relief on the
impermissible commingling issue in accordance with the rules. Kinavey’s
26
constitutional rights were not violated as neither the Solicitor nor Board members
engaged in impermissible commingling conduct. Finally, substantial evidence
supported the Board’s grounds for removal of Kinavey as superintendent of the
District based on Kinavey’s dishonesty and lack of candor to the Board
surrounding Breisinger’s candidacy as well as acts of plagiarism.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Terry Kinavey, :
: No. 1081 C.D. 2015
Appellant :
:
v. :
:
West Jefferson Hills School District :
and Board of Directors of :
West Jefferson Hills School District :
ORDER
AND NOW, this 15th day of June, 2016, the order of the Court of
Common Pleas of Allegheny County, dated June 5, 2015, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge